Health Administration Responsibility Project
The Secretary of Labor's Amicus Briefs on ERISA Preemption of Medical Malpractice Claims Against HMOs

During the past several years, the Secretary of Labor has filed amicus curiae briefs arguing that ERISA does not preempt negligence or medical malpractice claims (outside the context of benefit denials) against HMOs and other managed care programs where the patient's health care is paid for through an employer-sponsored health plan covered by ERISA.
The Secretary's briefs address preemption of such claims under ERISA § 514(a), 11 U.S.C. § 1144(a), which preempts all state laws that "relate to" an ERISA plan.
The Secretary's briefs also address whether such claims can be removed from state court to federal court under a doctrine of federal question jurisdiction known as "complete preemption, " a concept which is distinct from preemption of a state claim under § 514(a).

Here is a list of the Secretary's Briefs.

  1. Dukes v. U. S. Healthcare, 57 F.3d 350 (3d Cir.),
    cert. denied, 116 S. Ct. 564 (1995).
    No preemption of:
    (1) vicarious liability claims against HMO based on medical malpractice of doctors (as actual or ostensible agents of HMO) or
    (2)direct liability claims for HMO's negligent selection and supervision of doctors. This is the Secretary's opening brief.
    Click here A> to get Secretary's reply brief.
  2. Visconti v. U.S. Healthcare, 57 F.3d 350 (3d Cir.),
    cert. denied, 116 S. Ct. 564 (1995).
    Same as Dukes.
  3. Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995).
    Vicarious liability claims against HMO based on medical malpractice of doctors (as actual or ostensible agents of HMO):
    (1) are not completely preempted and, therefore, not removable from state court and
    (2) are not preempted under ERISA § 514.
  4. Ravenel v. Kaiser Foundation Health Plan of Texas, C.A. No. 3-94CV-2239H (N.D. Tex. 1995).
    Same as Rice.
  5. Robbins v. HIP of New Jersey, C.A. No. 94-1395 (GEB) (D. N.J. 1994).
    HMO serving state employee's health plan has no basis to allege preemption because governmental plans not covered by ERISA.
  6. Bledsoe v. Brown, No. A334764 (Dist. Ct., Clark Cnty, Nev.)
    Claims of negligence in arranging for medical care, in this case negligently failing to have a referral procedure to insure that patients are seen by specialists in a timely fashion, are not preempted by ERISA § 514.
  7. Shea v. Esensten, 1997 U.S. App. Lexis 3378 (8th Cir. 1997).
    In support of petition for rehearing, the Secretary argued that ERISA does not preempt state claims against an HMO for fraud and misrepresentation and tortious interference with contract arising from an incentive compensation arrangement whereby doctors were paid more if they did not refer patients to specialists and paid less if they did.
  8. Nascimento v. Harvard Community Health Plan, No. 942534 (Mass. Super. Ct.).
    The Secretary argued that ERISA does not preempt state claims against an HMO for negligence, intentional tort, and breach of contract arising from the HMO's provision or arrangement of medical care.
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